Posts Tagged ‘cheeseburger bills’

Cheeseburger Bills or Common Sense Consumption Acts (CCAs) were spearheaded by the National Restaurant Association as well as the American Legislative Exchange Council (ALEC) and have been enacted in 26 states. Media coverage and legislative debates about CCAs were dominated by themes of personal responsibility and the need for tort reform to protect businesses from frivolous litigation. A recent study just published in the Food and Drug Law Journal by PHAI’s Cara Wilking, J.D. and Richard A. Daynard, J.D., Ph.D. analyzes the

The majority of CCAs (16 states) may be interpreted to confer broad civil immunity for claims seeking to recover for health harms stemming from long-term consumption of food.

The CCAs enacted in nine states (Alabama, Colorado, Georgia, Idaho, Illinois, Michigan, Missouri, Oklahoma and Tennessee) impose a limitation on the kinds of cases government attorneys can bring by specifically referencing governmental entities when defining the reach of the statute.

Thirteen states impose substantial procedural barriers such as heightened pleading requirements and stays of discovery for covered obesity-related claims.

All states had laws to guard against frivolous litigation in place prior to the enactment of CCAs.

The health harms of tobacco are well-known and linked to corporate misconduct. In the late 1990’s, tobacco litigation brought by State Attorneys General resulted in individual settlements by four states to recover smoking-related Medicaid costs. Forty-six states and territories negotiated the Master Settlement Agreement securing annual payments of several billion dollars in perpetuity as repayment for smoking-related healthcare costs.

Between 2008 and 2010, adult obesity rates increased in a total of 16 U.S. states, 11 of which are CCA states. The CCA states of Alabama, Louisiana and Tennessee are among the top five states with the highest rates of obesity, diabetes and hypertension. The current medical cost of adult obesity in the U.S. is estimated at $147-$210 billion per year, $61.8 billion of which is paid for by Medicare and Medicaid (Levi et al. 2012). The twenty-sixth CCA was passed in North Carolina in 2013 and they continue to be introduced in state legislatures. “A close analysis of CCAs reveals that the real point of the CCA proponents was not to prevent frivolous litigation, from which industry already had plentiful protection, but rather to limit legally and factually sound tobacco-style litigation, which might eventually have harmed industry’s bottom line and forced it to change its practices,” said Cara Wilking, J.D.

This research was supported by award #2R01CA087571 from the National Cancer Institute. The content is solely the responsibility of the authors and does not necessarily represent the official views of the National Cancer Institute or the National Institutes of Health.

Santa Clara County, CA and the City and County of San Francisco, CA enacted ordinances requiring restaurants to meet nutrition criteria for children’s meals that use incentive items such as toys to drive child consumer demand. Neither law bans the use of toys or other incentive items, and both laws are designed to protect children from being baited into requesting unhealthy meals. The Governor of Arizona recently signed into law a provision barring local governments from putting any limits on the use of “consumer incentive items” in “retail food establishment marketing.” Florida currently has an even broader law on the Governor’s desk that would prevent local control over “all matters related to the nutritional content and marketing of foods offered” at public food and lodging establishments. As chronicled by the LA Times, both of these laws were carefully orchestrated by the restaurant industry in response to so-called “toy bans.” In point of fact, both laws go far beyond Happy Meal toys.

In addition to protecting vulnerable child consumers, local governments regulate business conduct under their police power and zoning authority for a number of reasons including aesthetics, public health and public safety. Arizona’s consumer incentives law essentially exempts food retailers from any local regulation that may have an impact on their business activities related to consumer incentives. “Consumer incentives” are broadly defined to include: “any licensed media character, toy, game, trading card, contest, point accumulation, club membership, admission ticket, token, code or password for digital access, coupon, voucher, incentive, crayons, coloring placements or other premium prize or consumer product” associated with a meal served by or acquired from a restaurant, food establishment or convenience store. The legislation pending in Florida strips local control over “all matters related to the nutritional content and marketing of foods offered” at public food and lodging establishments.

Many communities maintain the character of their communities through local aesthetic-related zoning laws. Imagine a small city with a historic downtown preserved by local zoning ordinances to protect the aesthetic character of the city. The community becomes concerned when a quick service restaurant starts putting large signs in its windows marketing a combo meal with a wrapper that one can scan with one’s phone to get points towards a future purchase. A local authority goes out to talk to the franchise owner and ask him to remove the signs as they are not in keeping with the local zoning ordinance. The restaurant owner refuses to remove the signs. Under the legislation enacted in Arizona and pending in Florida, the city would be powerless to challenge the practice.

The as yet to be enacted Florida law, is so broad that it would prevent local governments from requiring additional nutritional disclosures to consumers about the calorie or sodium content of restaurant menu items. In addition, some states delegate consumer protection authority to city and county attorneys. Such authority was used by a city attorney to make the first formal challenge to misleading “Immunity” claims on children’s cereal marketed at the height of the swine flu outbreak. The pending Florida law arguably would even exempt any food marketing by a restaurant or public lodging from local city or county attorney enforcement of deceptive and unfair business practices laws.

A recent story by Reuters run in a number of news outlets analogized the current legislation to “cheeseburger” or “commonsense consumption” bills, also sponsored by the restaurant industry. Cheeseburger bills are on the books in over 20 states and bar personal injury claims against food makers and restaurants for injuries related to long term over-consumption of food. Many state cheeseburger bills, however, do not immunize food sellers from liability when they knowingly violate laws pertaining to marketing, distributing, advertising, labeling or sale of the goods such as state consumer protection statutes prohibiting deceptive, unfair or unconscionable trade practices. The very purpose of local ordinances tying child incentive items to nutritional quality is to protect children from the fundamentally unfair and deceptive use of toys to generate child requests for unhealthy foods. The Arizona and Florida laws contain no such exemption to allow local intervention to protect vulnerable consumers from deceptive and unfair food marketing.

The law in Arizona and the pending legislation in Florida, strip local governments not only of the ability to protect children from harmful business conduct, their expansive nature jeopardizes local control over many other important business conduct issues. These laws fundamentally change the rules of the game that local governments have depended on to maintain community character and to protect their communities.

On January 21, 2011, Northeastern University Law Journal sponsored its third annual symposium. This year, it was entitled “From Seed to Stomach,” and addressed legal and regulatory aspects of obesity and food safety. The symposium was recorded for broadcast by CSPAN, which aired the material from February 25-28, 2011.

PHAI’s Executive Director, Mark Gottlieb, along with Stephen Gardner (Director of Litigation for the Center for Science in the Public Interest) appeared on a panel moderated by Stuart Rossman (Director of Litigation for the National Consumer Law Center) focused on the future of obesity litigaiton. The 80 minute panel is archived on CSPAN’s website. Topics addressed included the “cheeseburger bills,” the role of and use of arguments around choice and individual responsibility, consumer protection law, and the litigation against McDonald’s use of toy giveaways to sell Happy Meals.

Research upon which Mr. Gottlieb’s presentation was based was supported in part by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#66968) and by the National Institutes of Health (grant RO1 CA 87571).